Whenever alienage is an element of a crime, the alleged alien who was the subject of the offense does not need to testify, and a jury can make an inference that the alleged alien was not allowed to enter the country legally based upon the non-availability of the non-testifying witness.

Noriega was convicted on numerous counts involving his rental of two properties on the United State-Mexico border to an alien smuggling organization for the purposes of concealing and transferring illegal aliens. Immigrations officers raided the properties and apprehended eighteen material witnesses; eight of those witnesses testified at Noreiga’s trial. Noriega appealed, arguing that insufficient evidence linking him to the cross-border transportation of the material witnesses and of the alienage of material witnesses. The Ninth Circuit found that the fact that Noriega lived on the property, was recorded by detectives stating the number of “illegals” that could be housed on the property, and that he erected aluminum siding to obstruct outside view was sufficient evidence to show Noriega was aware that he was renting the property to be used as a “load house” for illegal immigrants. The Court also found that the jury could make a reasonable inference that non-testifying material witnesses lacked permission to enter the country. The Court refused to institute a rule that any time alienage is an element of a crime, the alleged alien who was the subject of the offense must testify. The Court held that forcing every alleged alien to testify would run afoul of the political branches’ authority to regulate immigration. The Court also found that given Noriega’s admissions on tape and the erection of the aluminum fence, a jury could find Noriega was aiding and abetting the illegal transportation of aliens into the United States. AFFIRMED